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Friday, February 28, 2014

Contempt petition - violating the interim order given in respect of sharing of MBBS AND BDS ETC, between private medical college and State government quota - private colleges made excess admissions - tendered unconditional apology - Apex court held that The excess 107 admissions made by the Medical College for the MBBS during the year 2011-12 and the previous year, be adjusted in the session 2014-15 in full taking note of the full sanctioned strength and the balance seats be adjusted in the year 2015-16. The unconditional and unqualified apology tendered by the contemnors is accepted, but the contemnors are directed to pay a fine of Rs.50 lakhs in two months from today, to the State Government. Ordered accordingly =State of M.P. & Anr. … Petitioners Versus Suresh Narayan Vijayvargiya & Ors. … Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41270

Contempt petition - violating the interim order given in respect of sharing of MBBS AND BDS ETC, between private medical college and State government quota - private colleges made excess admissions - tendered unconditional apology - Apex court held that The excess 107admissions made by the Medical College for the MBBS during the year 2011-12 and the previous year, be adjusted in the session 2014-15 in full taking note of the full sanctioned strength and the balance seats be adjusted in the year 2015-16. The unconditional and unqualified apology tendered by the contemnors is accepted, but the contemnors are directed to pay a fineof Rs.50 lakhs in two months from today, to the State Government. Orderedaccordingly =whether the contemnors have violated the interim orders passed by thisCourt on 27.5.2009 and 27.1.2011 in Civil Appeal No. 4060 of 2009 in thematter of sharing of MBBS seats between the respondent private medicalcollege and the State Government. =We have already pointed out that the contemnors earlier took up thestand that, after notifying their institution as a University on 4.5.2011under the Private University Act, 2007, the AFRC Act ceased to apply,hence, they are not bound by the orders passed by this Court. Contemnorscannot take refuse under a notification issued under a Statute to defeatthe interim orders passed by this Court which are binding on the parties,unless varied or modified by this Court. In the instant case, all theappeals in which interim orders have been passed, are pending before thisCourt and if the contemnors had any doubt on the applicability of thoseorders, they could have sought clarification or modification of the order. Now, by tendering unconditional and unqualified apology, the contemnorsare trying to wriggle out of the possible action for Contempt of Court,after violating the orders causing considerable inconvenience to thestudents and after enjoying the fruits for the illegality committed bythem. It is trite law that apology is neither a weapon of defence topurge the guilty of their offence; nor is it intended to operate asuniversal panacea, it is intended to be evidence of real contriteness. (SeeM.Y. Shareef & Anr. v. Hon’ble Judges of the High Court of Nagpur & Ors.(1955) 1 SCR 757 and M.B. Sanghi, Advocate v. High Court of Punjab &Haryana & Ors. (1991) 3 SCC 600.16. Contemnors have now tendered unconditional and unqualified apologyand volunteered to set right the illegality committed by them, but thepurpose for flouting the orders has been achieved, that is the contemnorswanted to fill up the entire seats by themselves. Therefore, to maintainthe sanctity of the orders of this Court and to give a message that theparties cannot get away by merely tendering an unconditional andunqualified apology after enjoying the fruits of their illegality, we areinclined to impose a fine, which we quantify at Rs.50 lakhs.We, therefore, order that the admission of students under the Statequota for the academic year 2011-12 in Medical College is valid and legaland appropriate steps should be taken by the State Government and theMedical Council of India to regularize the admission. The excess 107admissions made by the Medical College for the MBBS during the year 2011-12and the previous year, be adjusted in the session 2014-15 in full takingnote of the full sanctioned strength and the balance seats be adjusted inthe year 2015-16. The unconditional and unqualified apology tendered bythe contemnors is accepted, but the contemnors are directed to pay a fineof Rs.50 lakhs in two months from today, to the State Government. Orderedaccordingly.21. The Contempt Petition is disposed of accordingly.

1. We are, in this contempt petition, concerned with the questionwhether the contemnors have violated the interim orders passed by thisCourt on 27.5.2009 and 27.1.2011 in Civil Appeal No. 4060 of 2009 in thematter of sharing of MBBS seats between the respondent private medicalcollege and the State Government.

2. Civil Appeal No. 4060 of 2009 was preferred by the
respondents/contemnors herein, challenging the judgment of the High Court
of Madhya Pradesh dated 15.5.2009, which upheld the validity of the Madhya
Pradesh (Admission and Fee Regulatory Committee) Act, 2007 (for short “AFRC
Act”), empowering the State Government to fill all the seats (including the
NRI seats) in all the education institutions in the State of Madhya
Pradesh, including private medical and dental collages. Since serious
disputes were raised with regard to seat sharing and fixation of quota of
seats for MBBS/BDS, this Court felt that some interim arrangement should be
made taking note of the interest of both the parties and also that of the
students. This Court, therefore, as an interim measure, passed an order on
27.5.2009 in C.A. No.4060 of 2009 and the connected appeals, which reads as
follows:

“We, therefore, direct that the admissions in the private
unaided medical/dental colleges in the State of Madhya Pradesh will be
done by first excluding 15% NRI seats (which can be filled up by the
private institutions as per para 131 of Inamdar case), and allotting
half of the 85% seats for admission to the undergraduate and post-
graduate courses to be filled in by an open competitive examination by
the State Government, and the remaining half by the Association of the
Private Medical and Dental Colleges. Both the State Government as well
as the Association of Private Medical and Dental Colleges will hold
their own separate entrance examination for this purpose. As regards
“the NRI seats”, they will be filled as provided under the Act and the
Rules, in the manner they were done earlier.

We make it clear that the aforesaid directions will for the
time being only be applicable for this Academic Year i.e. 2009-2010.
We also make it clear that if there are an odd number of seats then it
will be rounded off in favour of the private institutions. For
example, if there are 25 seats, 12 will be filled up by the State
Government and 13 will be filled up by the Association of Private
Medical/Dental Colleges. In specialities in PG courses also half the
seats will be filled in by the State Government and half by the
Association of Private Medical/Dental Colleges and any fraction will
be rounded off in favour of the Association. In other words if in any
discipline there are, say, 9 seats, then 5 will be filled in by the
Association and the remaining 4 will by the State Government.
Capitation fee is prohibited, both to the State Government as well as
the private institutions, vide para 140 of Inamdar case. Both the
State Government and the Association of Private Medical/Dental
Colleges will separately hold single window examinations for the whole
State (vide para 136 of Inamdar case).

We make it clear that the solution we have arrived at may not
be perfect, but we have tried to do our best to find out the best via
media. Although this order is only for Academic Year 2009-2010, we
recommend that it may also be considered for future sessions.

Six weeks’ time is allowed for filing counter-affidavit and
four weeks thereafter for filing rejoinder.

List these appeals for final hearing in September 2009. In the
meantime, pleadings may be completed by the parties.”

3. The interim arrangement made continued in the subsequent years as
well and in the year 2011-2012, this Court vide its order dated 27.1.2011
in I.A. No. 50 of 2011 passed the following order:
“The order dated 27th May, 2009 made in Civil Appeal No. 4060 of
2009 etc. shall be applicable for the academic year 2011-2012.

There shall be an order accordingly.”

4. This contempt petition has been preferred by the State Government and
the Director of Medical Education Department alleging that the contemnors
have filled up the entire 150 seats available for the year 2011-2012,
without sharing it with the State Government, violating the orders of this
Court dated 27.5.2009 and 27.1.2011. Petitioners pointed out that the
contemnors had sent a letter dated 23.5.2011 stating that they would fill
up the entire seats during the academic year 2011-2012 since their colleges
would be functioning under the Madhya Pradesh Niji Vishwavidyalaya
(Sthapana Avam Sanchalan) Adhiniyam, 2007 [for short “Adhiniyam 2007”],
consequent to the establishment of the Peoples’ University under M.P. Act
No.18 of 2011 and the admission process of those constituent institutions
would be governed by the statutes and ordinances framed under the above-
mentioned Act. The State Government noticing the stand taken by the
contemnors, wrote a letter dated 14.7.2011 to the Managing Director of the
Medical College stating that the admissions have to be made only following
the arrangement made by this Court vide order dated 27.1.2011 and, if any
change has to be made, the same could be done only with the permission of
this Court.

5. The Directorate of Medical Education of the State Government also
wrote a letter dated 14.7.2011 to the Medical Council of India, informing
the Council of the defiant attitude taken by the contemnors by not giving
admission to any of the students included in the State quota for the
academic year 2010-11.

6. The Directorate of Medical Education then wrote a detailed letter
dated 8.8.2011 to the Secretary, Association of Private Dental & Medical
Colleges, in the State, specifically referring to the interim order passed
by this Court on 27.1.2011 reminding them of the necessity of the
compliance of the Court’s directions in the matter of seat sharing. The
contemnors, ignoring those letters, published an advertisement in a local
newspaper “People Samachar” on 9.8.2011 informing the public that 150 seats
would be available with them for admission to MBBS course under the
management quota for the year 2011-12.

7. The Directorate of Medical Education, in the meanwhile, sent a list
of 66 students under the State quota to the Medical College for admission
to MBBS course. The contemnors refused to admit those students under the
State quota and the State Government received several complaints from the
students who were included in the State quota, but not admitted by the
contemnors. The State Government then sent a notice dated 17.8.2011, to the
Dean of the Medical College to show cause why the following action be not
initiated against the college:-
(a) withdraw the Desirability and Feasibility Certificates issued in
favour of the college;

(b) report the matter to the Medical Council of India to take
suitable action against the college.

8. The contemnors, in total defiance of the Court’s order as well as the
various directions issued by the Directorate of Medical Education, filled
up the entire 150 seats in the management quota for the academic year 2011-
12.

9. The students, who figured in the State quota, then approached the
High Court of Madhya Pradesh. The High Court directed the contemnors to
admit students who were included in the State quota. Consequently, they
admitted those students and the number of students admitted in the College
went up to 245 as against the sanctioned strength of 150 seats. The Medical
College does not have the infrastructural facilities to admit 245 students,
which has adversely affected the academic standards of the students
admitted. The State Government, as also the Directorate of Medical
Education, in the above-mentioned circumstances, approached this Court and
filed the present Contempt Petition for taking appropriate action against
the contemnors for violating the orders passed by this Court on 27.5.2009
and 27.1.2011 and also by not complying with the various directions issued
by the State Government as well as the Directorate of Medical Education.

10. When the matter came up for hearing, this Court issued notice to the
contemnors. Learned senior counsel appearing for the contemnors, submitted
before this Court on 3.2.2014 that they would be tendering their
unconditional and unqualified apology for their actions and made a proposal
to set right the illegalities committed, which reads as under :-
(a) None of the 245 students admitted in the Institution – Peoples
College of Medical Sciences (PCMS) during the academic year 2011-
12 shall be disturbed and they all will continue to pursue their
course without any interruption. This would include the students
allotted by the State who had been given provisional admissions
pursuant to the orders of the Hon’ble High Court.

(b) In the academic session 2011-12 on the basis of the 50-50
admissions between the College and State after 15% NRI quota is
deducted as per the orders of this Hon’ble Court, the State
entitlement filled in by the institution was 63 seats. The
institution shall accordingly surrender 21 seats in each of the
following three academic years i.e. 2014-15, 2015-16 and 2016-17
to the State government to be filled in through the procedure
laid down in the order dated 27.5.2009.

11. The contemnors on 13.2.2014, filed a written note wherein, after
reiterating the proposals submitted on 3.2.2014, they stated as follows :
“13. Though admissions have already been made by the State against
the said 63 seats for the year 2011-12 in the said year itself still
in deference to the orders of this Hon’ble Court the Respondent is
willing to give up the said 63 seats. It is however requested that if
these 63 seats are adjusted only in one year, the college would suffer
adversely. Therefore, the Respondent again humbly submits that it be
permitted to surrender 21 seats in each of the following three
academic years i.e. 2014-15, 2015-16 and 2016-17 as submitted before
this Hon’ble Court on 3.2.2014 to the State Government to be filled in
through the procedure laid down in the order dated 27.5.2009.

14. It is respectfully submitted that in the captioned contempt
petition of the Petitioner State only relates to its 50% quota of
admissions i.e. 63 seats in the academic year 2011-12.

15. The respondents reiterate the proposal submitted on 3.2.2014 and
again tender an unconditional and unqualified apology for their
actions.”

12. In the written note filed by the State of Madhya Pradesh on
13.2.2014, in response to the submissions made by the contemnors on
3.2.2014, the State of Madhya Pradesh stated as follows :-
“20. For the academic session 2011-12, the State Government had a
quota of 107 students :-

• 63 seats as per the 50:50 order of this Hon’ble Court.

• 42 seats as per letter dated 19.9.2011 of MCI since Peoples
College made excess admissions in 2010-11.

• 2 seats which were not filled in the NRI quota.

21. The aforesaid position of State quota seats for 2011-12 is
explained in detail in the letter of MCI dated 5.3.2012 (annexed
herewith as Annexure A-1).

22. For the academic session 2011-12

Total sanctioned strength 150

Total seats filled by College 245

College authorized to fill 43

State quota seats filled by College 95

Excess seats filled by College 107

23. The issue of excess admissions made by the College is to be
considered as per the Regulations framed by the MCI under the Indian
Medical Council Act, 1956 and the submissions made by the MCI in that
regard.

24. However, if the scheme formulated by the Peoples College is
considered by this Hon’ble Court, then the excess 107 admissions made
by the College in 2011-12 be adjusted in the session of 2014-15 in
full and remaining seats be adjusted in 2015-16.

25. On account of illegal and unlawful acts of
Respondents/Contemnors, not only the State Government, but the
students of the State quota, who were illegally denied admissions were
severely harassed and were drawn on a long drawn legal battle with
uncertainty of their respective careers.”

13. We have no hesitation in saying that the above situation has been
created by the contemnors themselves by filling up of the entire 150 seats
in total defiance of the interim orders passed by this Court on 27.5.2009
and 27.1.2011 making an interim arrangement for seat sharing between the
State Government and the private educational institutions from the year
2009-10 onwards in the State of Madhya Pradesh, which are binding on the
contemnors. The contemnors attempted to justify their action on the
ground that they are regulated by the Private Universities Act and that
AFRC Act has ceased to apply and, after the notification dated 4.5.2011,
the State Government has no right even to share seats in their institution,
de hors the interim orders passed by this Court. This stand taken by the
contemnors is also not correct, since Section 7(m) of the Private
University Act, 2007 provides that admission shall not be started till the
concerned statutes and ordinances are approved as per Section 35 of the
Act, which states that the statutes and ordinances shall come into force
only upon publication in the official Gazette. Even otherwise, once there
is an order in force binding on the parties, they cannot violate or ignore
that order, taking shelter under a statutory provision and if any
modification of the orders is warranted, parties should have approached
this Court and sought for clarification or modification of those orders.
However, without doing so, in total defiance of the orders passed by this
Court, they filled up the entire seats, leaving the students who figured in
the State list in the lurch. Later, though they were admitted in the
College having the infrastructure for accommodating only 150 students, it
has affected the quality and standard of medical education. After having
convinced that they had violated the orders of this Court, they have come
up with an unconditional and unqualified apology and making some
suggestions to undo the illegality committed by them after eating away the
seats from the State quota.

14. We have, on facts, found that there has been a willful disobedience
by the contemnors of the orders passed by this Court, which is nothing but
interference with the administration of justice. Disobedience of an order
of a Court, which is willful, shakes the very foundation of the judicial
system and can erode the faith and confidence reposed by the people in the
Judiciary and undermines rule of law. The Contemnors have shown scant
respect to the orders passed by the highest Court of the land and depicted
undue haste to fill up the entire seats evidently not to attract better
students or recognize merit, but possibly to make unlawful gain, adopting
unhealthy practices, as noticed by this Court in TMA Pai Foundation & Ors.
v. State of Karnataka & Ors. (2002) 8 SCC 481 and various other cases.
Once the Court passes an order, the parties to the proceedings before the
Court cannot avoid implementation of that order by seeking refuge under any
statutory rule and it is not open to the parties to go behind the orders
and truncate the effect of those orders. This Court in T.R. Dhananjaya v.
J. Vasudevan (1995) 5 SCC 619, held that once the Court directed that
appeal be disposed of after giving him opportunity of hearing and such
direction was not appealed from, it is not open to the concerned authority
to deny the hearing on the ground that the Police Manual does not provide
for the same. This Court in Mohd. Aslam alias Bhure, Acchan Rizvi v. Union
of India (1994) 6 SCC 442 held that circumvention of an order can be by
‘positive acts of violation’ or ‘surreptitious and indirect aids to
circumvention and violation of orders. In the instant case, the violation
is a positive act of violation, which is apparent on the face of the
record.

15. We have already pointed out that the contemnors earlier took up thestand that, after notifying their institution as a University on 4.5.2011under the Private University Act, 2007, the AFRC Act ceased to apply,hence, they are not bound by the orders passed by this Court. Contemnorscannot take refuse under a notification issued under a Statute to defeatthe interim orders passed by this Court which are binding on the parties,unless varied or modified by this Court. In the instant case, all theappeals in which interim orders have been passed, are pending before thisCourt and if the contemnors had any doubt on the applicability of thoseorders, they could have sought clarification or modification of the order. Now, by tendering unconditional and unqualified apology, the contemnorsare trying to wriggle out of the possible action for Contempt of Court,after violating the orders causing considerable inconvenience to thestudents and after enjoying the fruits for the illegality committed bythem. It is trite law that apology is neither a weapon of defence topurge the guilty of their offence; nor is it intended to operate asuniversal panacea, it is intended to be evidence of real contriteness. (SeeM.Y. Shareef & Anr. v. Hon’ble Judges of the High Court of Nagpur & Ors.(1955) 1 SCR 757 and M.B. Sanghi, Advocate v. High Court of Punjab &Haryana & Ors. (1991) 3 SCC 600.16. Contemnors have now tendered unconditional and unqualified apologyand volunteered to set right the illegality committed by them, but thepurpose for flouting the orders has been achieved, that is the contemnorswanted to fill up the entire seats by themselves. Therefore, to maintainthe sanctity of the orders of this Court and to give a message that theparties cannot get away by merely tendering an unconditional andunqualified apology after enjoying the fruits of their illegality, we areinclined to impose a fine, which we quantify at Rs.50 lakhs.

17. We may now examine how the illegality committed by the contemnors can
be rectified. For the academic year 2011-12, the State Government’s quota
was 107 seats, details of which is given below :-
• 63 seats as per the 50:50 order of this Hon’ble Court.

• 42 seats as per letter dated 19.9.2011 of MCI since Peoples
College made excess admissions in 2010-11.

• 2 seats which were not filled in the NRI quota.

18. The total sanctioned strength for the academic year 2011-12 was 150
students, but the contemnors had filled up 245 seats, though the college
was authorized to fill up only 43 seats. The contemnors filled up 95
seats, which would have gone to the State quota. Consequently, 107 excess
seats were filled up by the college. The contemnors, however, took up the
stand that if 63 seats are to be adjusted for the academic year 2014-15
that may seriously affect the functioning of the College, hence their
suggestion is that they will compensate the lost seats in a phased manner,
that is 21 seats in the year 2014-15 and the rest in equal proportion in
the years 2015-16 and 2016-17, which we find difficult to accept. We are
of the view that the excess of 107 admissions made in the year 2011-12 have
to be adjusted by adjusting the same for the academic session 2014-15 in
full and remaining seats be adjusted in the year 2015-16, because the
illegality committed must be set right at the earliest. This Court in
Mridul Dhar (Minor) & Anr. v. Union of India & Ors. (2005) 2 SCC 65, held
(Direction No.11) as follows :
“11. If any private medical college in a given academic year for any
reason grants admission in its management quota in excess of its
prescribed quota, the management quota for the next academic year
shall stand reduced so as to set off the effect of excess admission in
the management quota in the previous academic year.”

19. We may reiterate that the above-mentioned situation has been created
by the contemnors themselves and due to their illegal and unlawful acts, by
admitting students over and above the sanctioned strength, the students who
were later admitted from the list of State quota, could not get the quality
medical education, which otherwise they would have got. Further, they were
also driven to unnecessary litigation before the High Court creating
uncertainty to their future.

20. We, therefore, order that the admission of students under the Statequota for the academic year 2011-12 in Medical College is valid and legaland appropriate steps should be taken by the State Government and theMedical Council of India to regularize the admission. The excess 107admissions made by the Medical College for the MBBS during the year 2011-12and the previous year, be adjusted in the session 2014-15 in full takingnote of the full sanctioned strength and the balance seats be adjusted inthe year 2015-16. The unconditional and unqualified apology tendered bythe contemnors is accepted, but the contemnors are directed to pay a fineof Rs.50 lakhs in two months from today, to the State Government. Orderedaccordingly.21. The Contempt Petition is disposed of accordingly.